Ex-HHS Secretary Price & Ortiz: ObamaCare court challenge no threat to preexisting conditions coverage

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President-elect Joe Biden delivers statement on ObamaCare

President-elect speaks and takes questions from reporters after Supreme Court hears arguments on Affordable Care Act

The Supreme Court heard oral arguments Tuesday in a Trump administration challenge to ObamaCare. The case, which the justices reacted to with skepticism during proceedings, has generated hundreds of breathless media reports about its supposed threat to Americans with preexisting health conditions.

 "Back to the dark ages on preexisting conditions," reads a headline on a column by Michael Hiltzik in The Los Angeles Times.

President-elect Joe Biden claimed Tuesday that the challenge was a "cruel" attack on Americans' health care.

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This perspective is fearmongering, not facts. In reality, people with preexisting conditions are not threatened by the legal challenge to ObamaCare. Democrats should heed Biden's recent call for unity and work in a bipartisan fashion to address what's really the most pressing threat to health care access: runaway prices.

Since many in the media refuse to do it, let us explain again why this court case poses no real threat to those with preexisting medical conditions.

First, only a few million people with preexisting conditions receive health care through ObamaCare. By the Obama administration's own estimates, just 2.7 percent of roughly 130 million Americans with preexisting conditions gained coverage.

The overwhelming majority of Americans receive health insurance coverage from their employers or the government, both of which already forbid chronic condition discrimination, irrespective of ObamaCare.

There's strong bipartisan support to protect this relatively small group of people. President Trump has indicated he'd veto any health legislation that doesn't protect them.

Second, it's highly unlikely that the court case will threaten even this small group of patients. The court challenge addresses one small part of the law: the (now unenforceable) individual mandate that requires all Americans to purchase health insurance. The plaintiffs argue that absent an associated penalty, which Republicans eliminated in 2017, the mandate is unconstitutional. 

Even if the Supreme Court justices agree with this reasoning, they will almost surely only strike down this vestige of the law under the precedent of severability. This theory, which Justice Amy Coney Barrett articulated to Democratic accolades during her confirmation hearing, holds that an unconstitutional part of a law can be stripped while leaving the whole intact.

"I tend to agree with you that it is a very straightforward case under our precedents," said Justice Brett Kavanaugh at Tuesday's hearing, "meaning that we would excise the mandate and leave the rest in place."  

Finally, on the remote chance that the justices do decide that the lack of an individual mandate invalidates the entire health care law, there will be no immediate change to health care. The ruling isn't expected until the spring, and it would provide Congress with an off-ramp to come up with a replacement plan.

The earliest that such a ruling would take effect is the 2022 plan year, giving policymakers more than enough time to take care of these people. No one will lose coverage overnight, in contrast to the alarmist claims.

Legislators should nevertheless use this case and the new spirit of post-election unity to forge a bipartisan fix to the nation's broken health care system. That means working together to lower costs, which threaten health care for middle-class Americans, especially those with chronic conditions. 

According to the Kaiser Family Foundation, the average cost of employer-sponsored family health coverage exceeded $20,300 in 2020 — up more than 50 percent over the last decade — and not including several thousand dollars more in annual deductibles.

Costs for coverage on the ObamaCare exchanges have more than doubled since 2013. Roughly half of American families delay health care each year to avoid these obscene prices.

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Personalized health care policy alternatives such as Healthcare For You would reduce these costs and broaden access by increasing health care choices, eliminating unnecessary regulations, cutting out inflationary middlemen, allowing portability between jobs, and ushering in price transparency. They include strong protections for those with preexisting conditions. 

Such a health care fix would offer real health care access, not just coverage in name only. For these pro-patient reforms to restore American health care, Republicans must hold the Senate by winning the upcoming runoff elections in Georgia.

Otherwise, Democrats will control both houses of Congress and the presidency, giving them a clear path to advance their public option health care plan that truly threatens the chronically ill. A public option will entice those on fixed incomes, the young, and the healthy to migrate from their private plans to this "free" alternative.

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Like in all insurance markets, these low-risk policyholders are needed to keep costs down for everyone else. Without them, costs will skyrocket even further for the sickest patients. The resulting death spiral would culminate in single-payer, socialized medicine and the access problems, ageism, and discrimination against the sick that plague those systems wherever they're tried.

The specter of socialized medicine and the crippling costs plaguing the current health care system are the true threats to Americans with preexisting conditions, not the ObamaCare court challenge heard this week.

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Alfredo Ortiz is the president and CEO of the Job Creators Network.